Why is Guardianship necessary?
Parents of children with disabilities are the natural Guardians, as with any other child, until the child’s eighteenth birthday. After that time, since the child has become an adult by law, it is necessary for parents to qualify as guardians in order to exercise parental supervision and provide guidance. All families need to make legal and financial plans for the future. Because of their unique needs, parents of children with developmental disabilities must plan even more carefully. The planning must start sooner, last longer, and take more details into consideration.
Who should serve as a Guardian?
Since guardianship need only be established once, a parent may want to designate him or herself as guardian individually or jointly with the consent of his or her spouse. It is important that one or more standby guardian(s) be appointed to ensure that someone will continue to support and advocate on behalf of your son or daughter in the event of your death or disability. Anyone who is being considered as a guardian or standby guardian should have the individual’s best interest at heart and understand the nature and degree of the person’s disability. Additional factors that should be considered, especially when deciding on a standby guardian, include geographical distance and availability of the person to make visits and decisions.
NYSARC, Inc. Guardianship Program
When there are no family members or friends available to act as a guardian or standby guardian, a not-for-profit organization, such as NYSARC, Inc., may act as a guardian of the person.
Guardianship of the Person
The guardian of a person is appointed by the court to manage the personal affairs, such as medical treatment or residential placement of an individual with a developmental disability.
Guardianship of the Property
The guardian of property, in conjunction with the court, is responsible for the management of any or all financial resources for the person with a developmental disability. The only exception is representative payee funds, such as Social Security, which may be managed by service providers.
Limited Guardianship of the Property
The court can appoint a guardian for a limited purpose of managing the property of the individual with a developmental disability. In this case, the individual retains the right to spend his or her monthly wages as he or she sees fit.
Procedures to obtain Guardianship
The Surrogate Court handles all forms of guardianship for persons who have a developmental disability. The process begins with the filing of a document called the “petition for appointment of a guardian.” The petition is submitted under Article 17-A of the Surrogate Court Procedure Act and can be done at any time, regardless of the age of a person with a disability. The application is usually brought before the Surrogate Court in the county where the person with a disability resides. The Arc’s Guardianship Program is available to provide information and guidance on guardianship procedures to professionals and families.
